Merco wins token damages, $5 million punitive award

PECOS, March 28, 1996 - Senior Judge Lucius Bunton has signed a judgment awarding Merco Joint Venture $2 in actual damages and $5 million in punitive damages and denied TriStar Television Inc. $50,000 damages sought in a counterclaim.

Merco sued TriStar and Hugh B. Kaufman for $60 million, claiming its reputation was damaged by a nine-minute "Sludge Train" segment of a "TV Nation" show broadcast Aug. 2, 1994.

The show followed municipal waste from first flush in New York City to Sierra Blanca, where Merco is spreading sludge on a 128,000 acre ranch. Negative comments from Sierra Blanca residents and from Kaufman were broadcast, while positive comments by Merco employees and others were cut from the film, court testimony showed.

After a week-long trial, a six-person jury found that TriStar and Kaufman should each pay Merco $1 in actual damages.

Kaufman, who said on the show that Merco's sludge ranch is an illegal haul and dump operation that is poisoning the people of Texas, was assessed $500,000 in punitive damages.

TriStar is to pay $4.5 million.

In the judgment, Bunton said, "Although the ratio of actual to punitive damages is large, this Court specifically instructed the jury that any award of punitive damages must bear a reasonable relationship to any award of actual damages.

"Moreover, at the time of this cause of action, there was no statutory ratio or limitation applicable to an intentional tort. Consequently, it is the Court's opinion the jury was instructed properly and that the respective amounts of punitive damages awarded to Plaintiff was, in their minds, reasonable."

Defendants are to pay all costs of court. Each party is to pay its own attorneys' fees.

Sony Pictures, which owns TriStar Television, has said they will appeal the verdict.

Skirmish lost in border war

Congress' decision to move U.S. Border Patrol agents from interior stations will hurt the war against drugs and other crime-fighting efforts, law enforcement agents say.

Town meetings are underway at area cities this week to allow citizens to support or oppose the move.

Joe Harris, assistant chief at the Marfa Border Patrol sector headquarters, said today that the Pecos station will not lose any personnel. However, Midland, Lubbock and Amarillo may be affected.

"Town meetings are going on as we speak," Harris said.

In Carlsbad, N.M. Tuesday, about 45 sheriffs, police chiefs and city, state and federal agency representatives spoke out against the move during a meeting with the regional directors of the Border Patrol and its parent agency, the Immigration and Naturalization Service.

The congressional mandate will move 212 Border Patrol agents from interior offices to the U.S.-Mexico border. The agents will be replaced by INS special agents, who will focus more on immigration issues and less on the roving patrols and narcotics work the Border Patrol has become known for.

The reshuffling is expected to be complete by Sept. 30.

But area law enforcement officials protested that Border Patrol agents are a vital part of law enforcement.

Carlsbad Police Chief Jim Koch said Border Patrol agents have been instrumental in helping with illegal drug cases and that losing the agents could hurt departments like his, which have small narcotics units.

``This will diminish the ability of law enforcement,'' Koch said.

Replacement INS agents would not be in uniform and therefore would not be visible to the public, costing a deterrence factor, said Dick Ness, executive director of the New Mexico Sheriff's and Police Association.

``Their presence and marked units make a difference throughout the state,'' he said.

Roswell Police Chief Ray Mounts said he is concerned that new agents will not be involved in local law enforcement.

``They wrote into law all these mandates for pro-active, community policing,'' he said. ``Now, it looks like to me these new agents will only be reactive. It doesn't make sense.''

New Mexico State Police Lt. James Woods said cutting the number of Border Patrol agents on the state's highways could endanger state police.

``We have traditionally relied on Border Patrol agents to back us up when we are patrolling,'' Woods said. ``Very often, when we pull someone over there may not be another officer within a hundred miles. But Border Patrol agents have often been there to provide safe backup.''

Jury quick to convict marijuana hauler

By PEGGY McCRACKEN Staff WriterPECOS, March 27, 1996 - Despite his claim that he didn't know the truck he was driving had marijuana in the gas tank, federal court jurors on Monday deliberated just 15 minutes before convicting Luis Gutierrez-Diaz of possessing marijuana with intent to deliver.

Gutierrez, 39, of Pomona, Calif. was arrested Feb. 3 after crossing the Rio Grande enroute from Ojinaga, Mex. to California.

Senior Judge Lucius Bunton set sentencing for May 2. The maximum punishment, with the enhancement of possession of more than 50 kilograms of marijuana, is 20 years in prison, three years supervised release and a $1 million fine.

Sex harassment suit goes to jury

PECOS, March 27, 1996 - Testimony began this morning in a civil rights suit filed in federal court against the Texas Youth Commission.

Danny Guadarrama of Kermit claims he was sexually harassed and wrongfully discharged from the West Texas State School in Pyote.

His attorney, Cindy Weir-Ervin of Odessa, said that Guadarrama began work at WTSS as a dorm supervisor in 1986 and was promoted to the recreation department the next year, receiving numerous commendations from his supervisors.

Marcella Morenko was his supervisor in the recreation department, Weir-Ervin said. After sexual allegations were made on both sides over a period of time, Guadarrama left his position at WTSS in 1994.

"He loved his job," Weir-Ervin said. "He would take it back today. He misses the kids. But once he crossed Morenko and some other people, he was doomed."

Lori Bien, an assistant attorney general who represents the TYC, said that Guadarrama didn't complain about the sexual harassment he now claims until Morenko filed a complaint about him.

"This is an attempt to get back at the TYC," she said.

Morenko and two other female employees filed complaints that Guadarrama followed them around and gave them gifts, Bien said.

And Guadarrama violated TYC policy by discussing alleged staff sexual activities with the students, she said.

When he was transferred from the recreation department back to a dorm and assigned to a two-week training program in Corsicana, Guadaramma filed a grievance, she said. "He wanted to stay in the recreation department where he had allegedly been perpetually sexually harassed," she said.

Guadarrama got a doctor's excuse not to work, and he refused to return work even as he was looking for another job, Bien said.

Judges gather to dedicate federal courthouse

PECOS, March 14, 1996 - Federal judges from throughout the Western District of Texas and from New Mexico will be among special guests for a barbecue tonight and the dedication of the Lucius D. Bunton III United States Courthouse Friday.

Seating for the 11 a.m. Friday dedication is limited to invited guests, but a reception for the general public begins at 12 noon, said District Judge Royal Furgeson.

Entertainment by the Pecos High School Mariachi Band, refreshments and tours guided by Pecos Chamber of Commerce Ambassadors will be features of the afternoon session.

Pecos Mayor Dot Stafford will welcome out-of-town guests during the dedication ceremony in the district courtroom. Dick Alligood will present a plaque in appreciation of Judge Bunton, who has served the Pecos Division since his federal appointment in 1979.

Monahans family sues drug task force

By PEGGY McCRACKEN Staff WriterPECOS, March 12, 1996 - A $1 million damage suit filed in 143rd District Court in Monahans against the Permian Basin Drug Task Force and three of its officers; Ector County, and the city of Monahans and its police chief was removed last week to federal court in Pecos.

Marie Kitchen, individually and as next friend of Cory and Kiya Moore; and Billie Ann Anderson, as next friend of James Anderson, claims task force and police officers violated their constitutional rights.

Watts and the city of Monahans filed a general denial and the notice of removal. Ector County filed a denial that they have any connection with the drug task force, other than supporting it financially.

Plaintiffs claim that investigators and police officers, armed with a search warrant for a residence at 2210 S. Betty in Monahans, entered their trailer house at that address on June 8, 1994.

Kitchen, who owns the trailer, said that officers illegally entered the residence by kicking in the front door and forcing the back door open to execute a natrcotics search warrant at the wrong address.

While inside the residence, the officers used excessive force and agressive and abusive language to restrain 71-year-old Bertha Moore. They forced James Anderson, 13, to the floor and held him with a gun pointed directly at the back of his head, the petition alleges.

They also used unnecessary physical force to restrain Kitchen and her minor sons, Kiya Moore and Cory Moore and then conducted an illegal and unnecessary search of their property and person. They seek $1 million actual damages, plus punitive damages in an unspecified amount.

Kaufman, TriStar to appeal $5 million award

PECOS, March 10, 1996 - Hugh Kaufman, an Environmental Protection Agency whistle blower, and TriStar Television Inc. are expected to appeal a $5 million verdict returned Friday by a federal jury at the close of a week-long trial in the Pecos Division courtroom.

The jury found that Kaufman and TriStar defamed Merco Join Venture in a "TV Nation" segment titled "Sludge Train" on Aug. 2, 1994; that the defamatory statements were false and made with malice.

False, commercially disparaging statements were made on the program, and Kaufman and TriStar knew it, the jury found. They awarded Merco $1 in actual damages from each of the defendants.

They awarded punitive damages of $500,000 against Kaufman, who said on the show that Merco's application of New York sludge on a Sierra Blanca ranch is an illegal haul and dump operation which is poisoning the people of Texas.

TriStar should pay Merco $4.5 million for broadcasting the statements, the jury decided.

Punitive damages send a message to others that they cannot libel the good name of an individual or company, said Joseph Tydings, Merco's lead attorney.

``I think the jury was deeply offended that a program such as this would receive any Emmy,'' Tydings told the Associated Press following the verdict. ``I think it was reflected in the punitive damages.''

Kaufman, who said he planned to appeal, said his statements were true and should have been legally protected opinion.

``The jury ruled that my making a statement based on that opinion was malice,'' he said. ``If I had a newspaper in Texas, I'd shut down the editorial page.''

Merco claimed the show damaged its reputation and put future business deals into jeopardy.

Film producer Michael Moore said ``TV Nation'' was a humorous series ``dealing with the issues'' that aired briefly on NBC affiliates in summer 1994. The series earned Moore an Emmy as an outstanding informational series.

Testifying earlier this week, Moore said the general idea for the sludge segment was to do something with garbage and pollution.

``My original idea was a garbage barge,'' Moore said. ``We made inquiries if we could ride a garbage barge, but couldn't. Then someone found out about the sludge train from New York.''

Moore contended that since the show was not a news show, the program did not have to adhere to the same journalistic ethics as a documentary.

``People liked the show mostly because it was humorous and it had substance to it,'' Moore testified. ``It dealt with things people were concerned about.''

Moore first gained fame with a humorous documentary film, ``Roger and Me,'' in which he sought to talk to General Motors chairman Roger Smith about the closing of an automobile plant in Moore's hometown in Michigan.

Judge cuts Sierra Blanca from Pecos docket

PECOS, March 6, 1996 - U.S. District Judge Royal Furgeson has withdrawn a 1981 order that criminal suspects arrested in the 10-county Pecos Division of federal court be brought to Pecos for all court action.

Under his new order, all arrestees will be taken to the nearest magistrate judge in the Western District of Texas, without regard to whether the magistrate judge is located in the Pecos, El Paso or Midland-Odessa divisions.

The magistrate judge who handles the initial appearance will also handle any necessary detention and preliminary hearings.

However, felony cases will be tried in Pecos under the order. Any case which originates in the Pecos Division will be filed and prosecuted in the Pecos Division, unless the case has a significant connection with another division in the Western District which would justify the case being filed there, he ordered.

Judge Furgeson requested that the U.S. Attorney for the Western District prepare a monthly statistical report for the court detailing how this change in orders is affecting the three divisions so that the impact of the order can be monitored by the court through May 31, 1996.

His action comes after numerous complaints by law enforcement officers, prosecutors and public defenders that traveling to Pecos for court puts a strain on their manpower and budgets.

DEA agents in El Paso have been especially vocal about the 1981 order by then-district judge Lucius Bunton, which required them to drive 80 miles to Sierra Blanca to pick up a suspect, then another 120 miles to bring him to Pecos for initial appearance before a magistrate.

Judge Furgeson said he believes his new order will increase criminal felony case filings in Pecos, where a new federal courthouse is under construction.

Merco claims $60.4 million for defamation

By PEGGY McCRACKEN Staff WriterPECOS, March 8, 1996 - Attorneys for Merco Joint Venture, TriStar Television and Hugh Kaufman spent the morning summing up evidence presented over the past four days in the federal court trial over a "Sludge Train" story.

Merco claims they were damaged the tune of $30.4 million and asked for an additional $30 million to send a message that the media cannot publish stories they know to be false and defamatory.

Kaufman, an EPA whistle blower, has the right under the first amendment to the U.S. Constitution to state his belief that the sludge Merco is applying on a Sierra Blanca ranch is poisoning the people and is an "illegal haul and dump operation," said his attorney, Martha Evans.

Dan Davison said that TriStar Television has the right to air Kaufman's statements and those of Sierra Blanca residents who oppose sludge application in their backyard.

The "TV Nation" production that triggered the suit won an Emmy award for its producer, Michael Moore.

That Emmy was the motivation for the piece, said Joseph Tydings, representing Merco. He said the "hatchet job" was outlined in a writer's game plan memo early in the project, and the final product followed the suggested story line, he said.

Davison denied there was a game plan, citing Moore's testimony that the story was his idea and Fran Alswang's testimony that the story line developed as she researched and interviewed people.

Merco called 23 witnesses, but presented no evidence that it had been damaged, and their motivation for filing the suit was to send a message that they will attack corporations and citizens who speak out against them, he said.

Economist Wayne Ruhter testified that Merco is making more money than they did before the show, Davison said.

Testimony on both sides of the issue proves that land application of sludge is controversial, and public discussion of controverisal issues is vital, he said, pointing to the banning of DDT, asbestos and lead in gasoline and paint.

"Those are things at one point in our past the government scientists thought were safe," he said. "but at some point they started to disagree and it became public. It was debated and science went forward."

Tydings said the issue is not first amendment rights to express an opinion, but libel.

The tort of libel protects the right of all citizens to keep their good name and reputation without fear of reckless, wanton lies, he said.

"That's a tremendously important right...We believe in free speech with all our hearts. But with free speech is responsibility to tell the truth," he said.

"If the First Amendment is being eroded, it is being eroded from within by the few journalists who hide behind it," he said. "We agree they have the right to express an opinion, but they don't have the right to lie about us; broadcast false statements."

False statements alluded to were Bill Addington's statement that someone set fire to his lumberyard because of his opposition to sludge and to Kaufman's claims of poisoning and illegal dumping.

Evans told the jury their decision would have a far-reaching effect.

"We live in a world of big government and big corporations, and we need someone on the inside like Hugh Kaufman to let us know what's going on."

Lewis Herrin, an employee of the Texas Natural Resources Conservation Commission, testified Thursday that he would not have approved Merco's application for sludge registration had he known they were not qualified to business in Texas at the time, she said.

Herrin also found the sludge did not comply with New York's regulations on the use of copper, but "he was under orders to process Merco's application as quickly as possible," she said.

Kaufman believed the Merco operation was illegal in Texas then, and that application of heavy metals is a long-term health risk to the people of Sierra Blanca, she said.

Merco has a $168 million contract to accept New York City sludge for six years. New York officials have indicated they will renew the contract when it expires in 1968, Davison said.

Students get lesson in court procedure

PECOS, March 6, 1996 - Seven Sierra Blanca High School senior history and legal studies students got a lesson in courtroom procedure Tuesday when they attended the sludge-TV trial underway in federal court.

Merco Joint Venture, who is applying New York City sludge (aka biosolids) to a Sierra Blanca ranch, claims they were slandered by a "TV Nation" broadcast Aug. 2, 1994.

Hugh Kaufman, an employee of the U.S. Environmental Protection Agency, said on the broadcast that Merco is poisoning the people of Texas. Under questioning by Merco lawyers this morning, Kaufman denied that the EPA has ordered him not to speak on their behalf.

"I can speak on areas where I have official authority," he said.

His authority is in the area of toxic waste cleanup under the EPA Superfund program, he said.

Sludge is not toxic waste, but biosolids approved by the EPA and Texas Natural Resources Conservation Commission for beneficial use, said George Fore, Merco ranch manager in his testimony Tuesday.

Sludge application has probably quadrupled grazing capacity, Fore said. He and two investors formed Porvenir Cattle Co. to graze the acreage on a lease basis and to manage wildlife. The mule deer population has doubled, and antelope has tripled, he said.

Merco invested $1.5 million in a railroad spur to receive the sludge, plus a storage shed the size of two football fields to hold sludge when it rains, he said.

They also constructed a washing station to clean the containers after sludge is dumped and built dirt berms to contain runoff around the shed and wash rack.

Fore said he was "acutely disappointed" by the TV Nation broadcast because it misrepresented the character of the project, and "no one was allowed to speak for Merco on the beneficial use program."

Fran Alswang, producer of the segment, "Sludge Train," interviewed him for over two hours, but did not use any of the interview in the show, he said.

The show had a chilling effect on Merco's future projects, he said. "It threw cold water on some political relationships. It made it much more difficult for a public figure to take a position for recycling biosolids... It made it appear environmentally dangerous and that dishonest, law-breaking companies were conducting it," he said.

Officials with TNRCC had privately agreed to lift restrictions on grazing cattle on the land, but after the show were hesitant to do so. They finally did approve it, though.

Fore said he recommended that Merco not go forward with two planned projects in New York as a result of the show.

Under cross examination, Fore said that the sludge Merco applies is 25 percent solids and 75 percent liquid. That means that on one acre, three tons of solids and 12 tons of water is applied.

Asked if the 12 tons of water in itself would make the grass grow, Fore laughed.

"Twelve tons of water probably is not enough to wet the carpet in this courtroom," he said. "It doesn't hurt anything."

The moisture is gone after 24 hours, and the solids remain in chunks on the ground for two years or more.

Asked if the wind will blow it around, Fore said "No."

"I imagine the jury has seen cow chips, and I doubt they ever saw any of them flying through the air," he said, evoking laughter from spectators and Senior Judge Lucius Bunton.

Ed Wagner, formerly employed by the New York City Department of Environmental Protection, said that waste water is treated for several months before it is shipped out as beneficial biosolids.

Recent changes in the treatment process remove most of the harmful elements, such as heavy metals and pathogens, he said.

His explanation of the process for Alswang's cameras was not made a part of the "Sludge Train" show.

Dr. Ron Sosebee, chairman of range, wildlife and fisheries department at Texas Tech University, said he administers Tech's research program at the Merco ranch.

Merco gave Tech a $1.6 million grant to conduct the research he said. That grant was used to influence the TNRCC's approval of Merco's sludge registration, he said.

The six-year research project is devoted to soil and plant response to biosolid application, he said. No strings are attached to the grant.

Annual reports are made to Merco on results of the research, and they are available by mail to anyone who requests them, Sosebee said. Results to date have been positive, he said.

Seven graduate students each have their own project, which they will use for their doctoral dissertations, he said. Two resident scientists live on the site.

The research has drawn interest from several countries, and a proposal has been submitted for collaboration with China on the same type of project, he said.

"Everything we are finding certainly has implications througout the world," he said.

Film producer wants more honest media

By PEGGY McCRACKEN Staff WriterPECOS, March 5, 1996 - Journalists and media should be more honest that they do have opinions, film producer Michael Moore told a federal court jury this morning.

Moore's "Dog-Eat-Dog" company produced the "Sludge Train" segment of a "TV Nation" broadcast that is the subject of a libel suit filed by Merco Joint Venture.

"TV Nation" was a humorous, "dealing with issues" series that aired on NBC affiliates in the summer of 1994, Moore said. It earned him an Emmy as an outstanding informational series.

He said the general idea for the sludge segment was to do something with garbage and pollution.

"My original idea was a garbage barge. We made inquiries if we could ride a garbage barge, but couldn't. Them someone found out about the sludge train from New York," he said.

Since it was not a news show, the program did not require the same journalistic ethics as a documentary, Moore said.

"People liked the show mostly because it was humourous and it had substance to it. It dealt with things people were concerned about," he said.

Questioned by Merco attorney Joseph Tydings about Sierra Blanca businessman Bill Addington's statements on the show that his lumberyard was burned down because of his opposition to sludge, Moore said it was not necessary to present evidence that Merco did not commit arson.

"I don't think evidence was the point. That's how he felt," Moore said.

"Do you believe it is possible to deceive the listening public by purposefully withholding information which contradicts the story line that your show is trying to present?" asked Tydings.

"No," Moore said..."The fact that it was not there says `this is how he believes.' It is his feelings, but we are not going to take a position on that."

Tydings asked Moore if TriStar Television, who commissioned the TV Nation series, later gave him a 26-month contract with an undisclosed salary, "regardless of whether of not you ever produced another show?"

"That's crazy, isn't it? Yeah," said Moore.

"You are almost like a movie star in the old days under contract with a studio?" asked Tydings.

"If you say I'm like a movie star, I think your credibility is in question," said the hulking, bearded producer, evoking laughter from spectators.

As to the sludge segment of TV Nation, Moore said he may have spent less than five hours working on it. He said he developed the story line and viewed rough cuts of the final segment.

"You knew there was a charge of poisoning the people of Texas?" asked Tydings.

"Does it say that? The show took that position? I think you are misrepresenting the entire piece. That's not what it is about," Moore said.

"Do you think references to that in the piece would require additional investigation?" asked Tydings.

"It was enough for me that many people of the town seemed to be upset about the sludge process," Moore said.

Hugh Kaufman, an employee of the Environmental Protection Agency, made the remark about New York sludge poisoning the people of Texas. He testified most of Thursday, admitting that the EPA docked his salary for the time he spend investigating Merco.

"I think it is o.k. for people to have a specific point of view," Moore said, using William Buckley's conservative "National Review" and Jim Hightower's liberal radio show as examples.

"That's all part of the journalistic mix, and it is healthy in a democracy to take a position and state their beliefs. I don't think it is the responsibility of either side to have to present all sides of the story. It is enough to say, `this is what I believe and this is why,'" Moore said.

Peter Kinoy, testifying by deposition, said that he edited the videotape at the direction of Fran Alswang, the producer who researched, interviewed and directed the filming.

The first process is to select film segments that best visually and audibly tell the story as you understand it, he said. Those are assembled into a rough cut that is twice as long as the final story, he said.

Moore's comments on the rough cut were followed in further editing, he said.

Mitch Singer, a lawyer for TriStar, said he advised the company on all legal matters relating to the show. After viewing the rough cut, he recommended editing out the word "dump" from Addington's statement about his opposition to sludge, "to make it asbsolutely clear no one is identifiable as committing arson."

As to Kaufman's statements, Singer said Alswang told him that Kaufman was a person with EPA who had knowledge of Merco and that he was investigating a potential hazardous waste site at Sierra Blanca.

Singer said he knew of no statements on the Sludge Train segment that were false or probably false.

Merco claims the show damaged their reputation and future business deals.

Sludge story changed after Sierra Blanca visit

By PEGGY McCRACKEN Staff WriterPECOS, March 5, 1996 - On-site interviews about sludge application on a Sierra Blanca ranch led to a change in focus for a "TV Nation" segment about New York waste and its ultimate destination, said Fran Alswang, producer.

Alswang was the first witness called by plaintiffs Merco Joint Venture as a federal court trial got underway Monday afternoon. Merco is suing Tri-Star Broadcasting Company Inc., their parent company, Sony Pictures Entertainment Inc., the segment correspondent, Roy Sekoff, and Hugh B. Kaufman, a "whistle blower" working for the Environmental Protection Agency.

Kaufman said on the show, aired over NBC affiliates Aug. 2, 1994, that the Merco sludge project is poisoning the people of Sierra Blanca. The project is an illegal dump masquerading as beneficial use, he said.

Those comments were solicited on advice from legal counsel who viewed a rough cut of hours of videotape taken for the nine-minute segment, Alswang testified.

She said that her initial plan was to create a humorous piece showing what happens to human waste after it is flushed down the toilet in New York.

It was only after talking with citizens of Sierra Blanca that Alswang realized the town was split on the sludge issue, she testified.

Merco attorney Joseph Tydings showed segments of positive interviews that were cut from the show and accused Alswang of slanting the story to "do a hatchet job" on Merco, which she denied.

Merco public relations contact Kelly Sarber, testifying by deposition, said that Alswang told her she was working for NBC, and that she planned to do a favorable, positive story on sludge recycling.

"She said she was impressed by the project and it would be a great show and very balanced," Sarber said.

Believing Alswang would do a piece that would educate the public, Sarber said she cooperated fully, giving her scientific reports and other information on sludge recycling.

"Nobody ever told me the piece had changed," she said.

After Alswang filmed the piece, she "didn't want to talk to me any more and didn't return my phone calls," Sarber said.

Because the piece showed the project in a bad light and angered Merco owners, Sarber resigned, giving up $5,000 per month plus expenses for her work on behalf of Merco, she said.

The show begins with shots of New York City and the sound of commodes flushing, moves to the wastewater treatment plant, then to the sludge train as it leaves Brooklyn.

At the Merco ranch near Sierra Blanca, Sekoff examines a load of sludge, then follows as huge machinery flings it across the rangeland for fertilizer. Brief interviews with citizens show that some oppose and some support the ranch.

Billy Addington, a Sierra Blanca businessman, tells how his lumberyard was burned down because of his opposition to sludge. Rancher Sam Dodge says the pollution has cut the value of his land, and he may have to abandon it and move away.

It closes with a shot of beautiful scenery and the lament that a nuclear waste dump is also being planned for the area.

Merco claims the show included "numerous sensationalized defamatory and disparaging statements" that were false and damaged their reputation and future contracts with the city of New York.

Joseph Tydings, lead attorney for Merco Joint Venture, said the company was damaged by the story, which appeared on NBC-TV affiliates Aug. 2, 1994.

Merco is applying New York sewage sludge to a 128,000-acre ranch they purchased near Sierra Blanca for that purpose. Calling the sludge biosolids for beneficial use, the New York company gave Texas Tech University a $1.5 million grant to study the results.

"Tech has an ongoing research project on the ranch since it opened," he said. "They have over 3,000 plots, testing every day the effect of biosolids."

The project has received national and international acclaim, Tydings said. Soil leaders from China, Africa and Mexico have visited the ranch, and students from Tech are being trained there.

He said that producers for Tri-Star Television laid out a plan for the "Sludge Train" segment of a "TV Nation" show before anyone visited the project, quoting from in¬ ternal memos that called it the "shit-train project."

"They ignored all the claims the ranch land was being restored," he said. "They didn't even talk to the Tech scientists working there."

Content of the show was directly contrary to the findings made in litigation before Chief Judge Lucius Bunton in a lawsuit filed by Texas Attorney General Dan Morales in an attempt to stop the sludge application before it started in 1992, Tydings said.

"He ruled against Texas and permitted the project to go forward," Tydings said.

Inferences by Sierra Blanca businessman Willard "Bill" Addington that his lumberyard was burned down because he opposed the Merco project, and statements by EPA whistle blower Hugh Kaufman that the project is a haz¬ ardous waste dump masquerading as beneficial use also brought them into the suit as defendants.

Judge Bunton dismissed claims against Addington in a pre-trial hearing.

Martha Evans represents Kaufman. She said he will testify about his work investigating hazardous waste sites over the 23 years he has worked for the EPA.

Dan Davison, defending Tri-Star and Roy Sekoff, said the question is not whether the Merco project is beneficial, but whether a person has a right to have an opinion and to express it without being sued and dragged into court.

That right is guaranteed by the first amendment to the U.S. Constitution, he said.

"Merco is attempting to silence its critics," Davison said. "It has been a controversial project since the day it came to Texas in 1992. This is just another in a long line of efforts to silence its critics."

He pointed to numerous newspaper articles and television reports in New York, West Texas, Dallas and Austin: "some pro Merco, some negative," to support his claim of controversy.

Scientists and scholars disagree on the project's benefits, and citizens in Sierra Blanca disagree, he said. Some think Merco is the best thing that's every happened because of the money; some think the land is being poisoned.

All that makes an interesting story, and that is what Tri-Star published, he said.

Sekoff merely provided the voice-over for the show and talked to some people, Davison said.

And he denied that Merco was damaged by the show, since they still have the $68 million contract with New York to dispose of their sludge.